Priest v. Nichols
| Decision Date | 18 December 1874 |
| Citation | 116 Mass. 401 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Charles C. Priest & another v. James R. Nichols & others |
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Suffolk. Tort for injury to the plaintiffs' goods by leakage from pipes alleged to be under the control of the defendants.
The first count of the declaration alleged that the plaintiffs were tenants of the first story and basement of a building on Congress Street, Boston, where they carried on business as wool dealers; that the defendants used the second story of the building as a manufactory of chemicals, and had charge of and used, for the purpose of carrying off the waste water and material of their manufactory, a water closet and sink, from which a waste pipe extended down through the plaintiffs' premises, which waste pipe the defendants carelessly and negligently suffered to leak, and from which waste water and refuse of the chemicals ran upon and through the plaintiffs' wool, greatly injuring it.
The second count, after alleging the use and occupation of the building by the parties as in the first count, set forth that the defendants had a steam-engine upon their premises to supply power to their manufactory, and that by the defendants' negligence the pumps and pipes thereof leaked, whereby a large quantity of water came down into the plaintiffs' premises, spoiling their wool.
The third count was of the same purport, alleging that "the defendants operated, employed and had charge of a steam-engine upon their said premises, and while so operating and running the said engine, the defendants carelessly and negligently suffered the pumps and pipes thereof to get out of order and repair, and leak, whereby a great quantity of water ran down into the plaintiffs' said premises, and spoiled and injured a large amount of the plaintiffs' wool."
Trial in the Superior Court before Dewey, J., who allowed a bill of exceptions in substance as follows:
Evidence was offered by the plaintiffs that they occupied the floor and basement under the premises occupied by the defendants. There was an engine on the defendants' floor over the premises of the plaintiffs, put in and used by the defendants to run their manufacturing establishment, after their lease to the plaintiffs, and also used to carry an elevator, which was used principally by the defendants, and occasionally by the plaintiffs. There was also a waste pipe, which, passing from a water closet and two sinks of the defendants, ran down, inclosed in a wooden box, through the premises of the plaintiffs to the basement. At about four feet from the basement floor it made a right angle, and flowed into the sewer, and connected with this waste pipe was a sink and water closet of the plaintiffs. The damages alleged in the declaration were caused by the water flowing back from the sewer at high tides and flooding the basement, and thereby damaging the plaintiffs' wool, then piled up on the floor, by a leak in the waste pipe at the angle in the plaintiffs' basement, and at a similar angle immediately over it on the premises of the defendants, from which the water leaked in upon the plaintiffs' wool in a room above the basement, and by water leaking down from the defendants' boiler and engine upon the plaintiffs' wool in the same upper room.
The plaintiffs testified that about the middle of July, 1872, their floor was flooded by the water backing in from the sewers, and damaging their wool, but were unable to state the precise amount of damage then caused, or by any subsequent leaking.
The plaintiffs also testified that from July, 1872, to November, 1872, water came down occasionally from the engine and boiler in the defendants' premises, and on one occasion water enough came down to wet the floor to a considerable extent, and that they were obliged to remove some bags of wool. They were not able to say exactly how much wool was injured in this way, but stated the amount of the injury in their judgment.
They further testified that some time in August a leak was discovered in the waste pipe, and the water had flowed down from the defendants' premises and wet their wool, stored on the floor of the plaintiffs over the basement; that the defendants, on being notified, had repaired the same; that damage, had been done thereby. As to the amount of the damage, the witnesses testified as to their judgment, but were unable to say exactly how much. Some time after, a leak was discovered in the basement of the plaintiffs' premises at the elbow of the waste pipe, the water from which had flowed on to the floor, and, the floor being inclined had flowed the entire length of the building, and had damaged considerable wool on the floor; the water from the leak at the elbow had flowed along the entire length of the floor, and damaged considerable wool in that way, but they were unable to state the exact amount. The leak had continued for some time before it was discovered, and when the defendants were notified they repaired the same, and since that time no damage had been done. By water from the engine and leaks in the pipe, some 20,000 pounds of wool had been damaged about ten per cent. of its value, which was fifty cents per pound. They had paid about $ 100 for having about twenty bags, which had thus been damaged, cleaned, and three loads had been carted off for manure. No bill had ever been presented to defendants for damages, but they had claimed damages of the defendants, and none of this wool had been sold for anything less by reason of the damage so done, as it was on the premises when they were destroyed by fire. In making up their proof of loss, no mention was made of any damaged wool, because their losses largely exceeded their insurance. The waste pipe was in the premises at the time of the first occupation thereof by the plaintiffs, and it was in evidence that the pipe had been in for many years; that it was not originally strong, and had become defective and weakened by long use, and that the defendants had by their employment of their plumber at different times to repair the same,...
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